BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI Virtual Hearing held through video conference as per MahaRERA Circular No.: 27/2020 SUO-MOTU CASE NO. 215 OF 2022 KHAMBHATI MODH VANIK SAMAJ, MUMBAI …APPLICANT IN THE MATTER OF: SAMAJ DARSHAN …PROJECT NAME M/S. BHAKTI ENTERPRISES …PROMOTER (OLD) H. RISHABRAJ DEVELOPERS …PROMOTER (NEW) MAHARERA PROJECT REGISTRATION NO. P51800010479 ORDER (In Rectification Application) December 19, 2022 (Date of virtual hearing – 12.07.2022, matter reserved for order) Coram: Shri. Ajoy Mehta, Chairperson, MahaRERA Advocate Bishwajeet Mukherjee for Promoter (New) Advocate Shashikant Chaudhari for Applicant. 1. The Applicant herein has filed the miscellaneous application seeking rectification under section 39 of Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the “said Act”) of the order dated 21.01.2022 passed by this Authority in the captioned suo-motu case (hereinafter referred to as the “said order”). The Operative part of the said order, is reproduced hereunder: “FINAL ORDER Thus, H. RISHABRAJ DEVELOPERS are permitted as the new Promoter for the said Project and the said Trust shall be held liable to take on all the responsibility arising out of the liabilities created by the erstwhile (old) Promoter / Developer of the said Project. Needless to say, that H. RISHABRAJ DEVELOPERS shall be required to independently comply with all the pending obligations under the provisions of the said Act or the rules and regulations made thereunder. Further, H. RISHABRAJ DEVELOPERS are allowed to make changes in FSI as may be approved by the Planning Authority. and are also granted an extension of the said Project up to 30.04.2023 to complete the balance construction work and handover possession to the Allottees of the said Project. H. RISHABRAJ DEVELOPERS is also directed to submit PERT CPM charts about the milestones to be achieved with respect to the completion of the said Project in a time Page 1 of 4 bound manner and also submit quarterly progress reports of achievements of such milestones and/ or delay if any, to MahaRERA, the said Trust, the Allottees and the Association of Allottees of the said Project.” 2. The Applicant is seeking the following reliefs vide the rectification application: “a) That this Hon’ble Tribunal in the exercise of powers under the Real Estate (Regulation & Development) Act, 2016 be please to modify the observations recorded in the Order dated 21-01-2022 and/or pass a fresh Order based upon all the facts, circumstances and grounds as mentioned hereinabove. b) That this Hon’ble court be pleased to provide cost of the Application. c) Any other and such further reliefs which this Hon’ble Forum/ Tribunal deems fir and proper in the interest of justice granted in favour of the Applicant(s).” 3. On 12.07.2022, a virtual hearing was held in the matter wherein the following roznama was passed by this Authority: “Both Parties present. The Applicant points to the order of the Authority dated 21.01.2022. The Applicant seeks the observation namely that the trust is responsible for any third-party rights created to be expunged. The Applicant cites the hon’ble High Court order dated 13.01.2022, wherein the hon’ble High Court has clearly articulated upon the roles of each party. The hon’ble High Court has clearly stated that no claims for the earlier allottees shall lie against either the new developer or the trust. The Applicant states that in view of the observation in the order dated 21.01.2022 he is been put to numerous difficulties and is unable to take the project forward. The Respondent promoter does not add anything as there is nothing which is adverse to him today. Matter reserved for orders.” 4. Before moving ahead this Authority rectifies a typographical error in the roznama dated 12.07.2022 wherein the Suo-Motu case No. is mentioned as 2015 instead of 215 and the body of the roznama starts with the title “Remand matter” which is inadvertently mentioned in place of “Rectification matter”. These errors are hereby rectified and the roznama dated 12.07.2022 shall henceforth read the case No. as 215 of 2022 with the title as “Rectification matter”. 5. It is also noted that the Applicant had filed an Appeal before the Hon’ble Maharashtra Real Estate Appellate Tribunal (MahaREAT) against the said order which was withdrawn by them with liberty to file the present rectification Page 2 of 4 application. The order dated 28.03.2022 of the Hon’ble MahaREAT is reproduced hereinbelow for ease of reference: “Learned counsel for Appellant submits that observations and directions made in the impugned order are contrary to the order dated 13.01.2022 of the Hon’ble Bombay High court. He seeks to withdraw the Appeal with liberty granted to Appellant to approach the Authority by filing necessary Application for rectification in line with the submissions made by the Appellant during complaint proceeding and also in conformity to the order of the Hon’ble Bombay High court. Appeal stands withdrawn with liberty to Appellant to approach the Authority to seek redressal of grievance pertaining to the impugned order. On being approached, the Authority to consider the contentions of Appellant/parties and take appropriate view in the matter accordingly. No costs. '” 6. The Parties herein have filed their submissions which are taken on record and are not repeated for the sake of brevity. 7. Thus, from the reliefs sought and the submissions made by the Applicant the only issue that needs to be considered is whether the said rectification is maintainable? 8. In order to examine the present rectification application, the provision of section 39 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the “said Act”) reproduced hereinbelow is noteworthy. “Section 39 - Rectification of orders: The Authority may, at any time within a period of two years from the date of the order made under this Act, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act: Provided further that the Authority shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act.” 9. From the plain reading of section 39 it is clear that this Authority can only rectify any mistake apparent from the record or amend any order passed by it, if the mistake is brought to its notice by the Parties i.e. in the present case the Applicant Page 3 of 4 herein. The Applicant vide its application for rectification has brought to the notice of this Authority an apparent mistake in the observation and the operative part of the said order seeking rectification of the said order wherein the para No. 6 has inadvertently held the Applicant Trust liable for liabilities arising out of the erstwhile (old) Promoter though the Hon’ble Bombay High Court in its orders clearly stated that the appointment of the new Promoter was allowed and that the Allottees of the erstwhile (Old) Promoter cannot claim any ad-interim reliefs against either the new Promoter or the Applicant Trust herein with whom they have no privy of contract. In view of the order passed by the Hon’ble Bombay High Court the part of the observation in para 6 of the said order is hereby deleted i.e. “In view of the undertaking submitted by the said Trust and the submission made by the said Trust this Authority directs the said Trust shall be held liable to take on all the responsibility, if any in the future arising out of the liabilities created by the erstwhile (old) Promoter / Developer of the said Project.” and also the part of the direction in the operative part of the said order is hereby deleted i.e. “and the said Trust shall be held liable to take on all the responsibility arising out of the liabilities created by the erstwhile (old) Promoter / Developer of the said Project.” The remaining part of the said order shall remain valid and subsisting and the said order to be read with this rectification order henceforth. 10. In view of the above, the issue at para No. 7 is answered in affirmative and the present rectification is allowed and to be read along with the said order. No order as to costs. AJOY Digitally signed by AJOY MEHTA MEHTA Date: 2022.12.19 17:33:07 +05'30' (Ajoy Mehta) Chairperson, MahaRERA Page 4 of 4 BEFORE THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY, MUMBAI Virtual Hearing held through video conference as per MahaRERA Circular No.: 27 /2020 suo-MoTU CASE NO.215 0F 2022 SAMAI DARSHAN ...PROIECT NAME M/S.BHAKTT ENTERPRTSES ...PROMOTER (OLD) H. RTSHABRAI DEVELOPERS ...PROMOTER (NEW) MahaRERA Proj ect Registration No. P51800010479 Order January 27,2022 (Date of oirtual luaing - 19.0L.2022, matter resented for ordcr) Coram: Shri. Aioy Mehta, Chairperson, MahaRERA Advocate Rashmin Khandekar for the Promoter (new) along with Harrish KumarJain, Managing Director, Nirajlaswani, H. Rishabraj, Advocate Humera Syed, Advocate Shekar, Bishwajeet Mukherjee and Advocate Shashikant Chaudhari for Samaj Darshan Trust. 1, M/ s. Bhakti Enterprises through its Proprietor Mr. Jayant Narendra Mehta is the erstwhile (old) Promoter/Developer and H. Rishabraj Developers are the new Promoter/Developer within the meaning of Section 2 (zk) of the Real Estate (Regulation and Development) Act, 201,6 ("said Act") of Real Estate Regulatory Authority ("RERA"). The erstwhile Promoter had registered the project "SAMAI DARSHAN" under section 5 of the said Act bearing MAHARERA Registration No. P5180001M79 (herein#ter referred to as the "said Proiect"). 2. On19.01,.2022, a virtual hearing was held in the matter wherein the following roznamawas passed: "Tlu Applicant, new Promoter, and tlu Samaj Darshan Trust are present through tluir adaocates and representatiaes as mentioned aboae. Page 1 of 7 T[u Adaocate for tlu new Promoter, H. RishabrajDeoelopers at the outset submits that lu is not sure wlutlur his application for change would strictly fall under sectbn 15 or section 4 or section 7 of tlu RER Acf. Furtlur lu brings out tlrc background of tlu case by pointing out that one IvUs. Bhnkti Enterprises was tlu erstwhile Deoeloper / Promoter who defaulted on aaious aunts and tlu Samaj Darshan Trust thus terminatud that agreement and appointed a new Promoter. TLu matter was luardby tlu Hon'ble Bombay High C-ourt whichaiile an order dnted L3.01.2022 ruled on futo main issues amongst the otlurs. One issue being thnt tItE Samaj Darshan Trust in oiew of the default was well within its rights to appoint tlu new Promoter and second thnt the Allottees of the ersfwhile Deaeloper / Promoter slall not luae any claims against tlu Samaj Darshan Trust or tlu new Promoter and that the same wouldhaae to be settled through specific performance against tlu erstwhile Deaeloper / Promoter who created thc liabilities, TLU Adoocate also pointed out that this being tlu case it is not a transfer or assignment in the strict sense of its terms, lt is not aaoluntary actbuthasbeenbrought aboutby an order of tlu Hon'ble Bombay High Court. Tlu Adoocate for Samaj DarshnnTrustpoints out tlut earlierbuyers were inoestors and cannot claim prioity of mntract and also points out that tlu erstuthile Deaeloper / Promoter through an afidaait before the Hon'ble Bombay High C-ourt has committed to carry tlu liabilities of tlu Allottees which were put in place by him. Furtlur, tlu Adaocate for tlu new Promoter seeks the following: 1, Change of Promoter aidc an application dated L8.11.202L; 2. Possession dnte chnnge to 31.04.2023; 3. Clunge in FSI from 3588 sq. mtrs. to 3624 sq. mtrs. Tlu Adaocate fur tlu new Promoter also submits that the consent is not required in the present case as this is sought subsequent to order of tlu Hon'ble Bombny High Court. The matter is lward and reseroed for oriler." 3 Khambhati Modh Vanik Samaj (Mumbai) are the landowners and the co- Promoters of the said Project (hereinafter referred to as the "said Trust"). The said Trust had submitted an application under section 15 of the said Act for change in name of the Promoter from M/s. Bhakti Enterprises, a Proprietary Concern to H. Rishabraj Developers, a Partnership Firm. The change of name of the Promoter was applied pursuant to the order dated 26.77.2020 passed in Commercial Division Notice of Motion No. 99 of 2020 in Commercial Arbitration Petition No. 147 of 2018with Commercial Arbitration Application No. 54of 2018 before the Honlble Bombay High Court on the ground that the construction of the said Project was stalled for about 5 years and in view thereof the land owners Page 2 of7 \-tN- / the co-Promoter of the said Project was allowed appoint a new Promoter/Developer. The relevant portion of the order of the Hon'ble Bombay High Court is reproduced hereinbelow: "16. Prayer clause (c) of the present Notire of Motion seeks leaae of this C-ourt to the Applicants / Petitioners to appoint a new dcaeloper for tlu deoelopment of tlu socicty. I do not see how this can possibly be denied." 4 Further, the Hon ble Bombay High Court has also passed an order dated 73.07.2022in a Suit No. (L) 78622 of 2021, filed by Mr. Jayesh Patel who claims to be the erstwhile (old) Promoter f Developer's Allottee against the erstwhile (old) Promoter / Developer wherein it has been observed that Mr. ]ayesh Patel cannot claim any ad-interim reliefs against either the new Promoter / Developer or the owner of the said Property i.e. the said Trust with whom he has no privy to seek protection of his alleged right to the suit flat. The Hon'ble Bombay High Court also observed that the Mr. Jayesh's family member had approached the MahaRERA Authority making the same complaint of not being put in possession of the respective flats including the suit flat under the said agreement for sale dated 25.07.2077 with the erstwhile (old) Promoter / Developer which had been duly registered and that MahaRERA Authorif by an order dated 13.70.2017 dismissed the complaint on the ground that agreement for sale was not executed as per the prescribed format of said Act and rules made thereunder and that there was no specific date of possession of the flats mentioned in the agreements for sale. Since, the date of possession was not specified, MahaRERA Authority felt that there is no cause of action for the complainant hence the complaint was dismissed. Thus, the Hon'ble Bombay High Court in view of the facts rejected the plea of Mr. ]ayesh Patel for grant of ad-interim reliefs against the new Promoter / Developer herein. The relevant portion of the aforesaid order of the Honlble Bombay High Court is reproduced hereinbelow: '13. In tlu present case, tlu Defendnnt No.8 - new deaeloper has been appointed under the aegis of this C-ourt aide order dated 26th Noaember, 2020. Tlu Defendant No.L, the erstwhib deaeloper had execated tlu Agreement fur Salc with tlu Applicant / Plaintiff as purchnser for which the specific perfurmance is sought in tlu present Suit. Tlu Suit proceeds on tlu premise tlnt thc Applicant antinues to Luoe a right to claim Specific Performance i.e. a ight to be put in possession of tlu Suit fat. Howeoer, with the page3ofT $\.W appointuent of tlu Defendant No.8 - new deaeloper, pima facie I am of tlu ttiew that ih, eypliront / Plaintiffs remedy will be in damages against tlu Defendnnt No.1, tlu erstwhile ilcaeloper, Ttu Applicant / Plaintiff cannot claim any ad-interim relief against eitlrcr tlu new deaeloper or tlu owner of tlu Suitproperty withwlamluhns no piay to seek protection ofhis alleged right to tlu Suit flat, / 14. It is furtlur pertinent to note thnt the Applicant Plaintiffs family member had awroached MahaRERA making the same complaint of notbeingput in possession of the respectioe fats including tlu Suit fat under the said Agreement for Sale dated 25th luly, 20L7 with Defendant No.L, tlu erstwhile deaeloper which had been duly registered. The complaint had been made as this was a MahnRERA project. Tlle MahaRERA by order dated 1.3th October, 20L7 dismissed tlu complaint on tle ground tlut Agreement for Sale was not exeanted ns per tlu prescibed format of RERA Act and Rules maile thereunder. TTure Toas no specific date of possession of the fats mentionedin the Agreements for Sale as also tlu posxssion was due on or before the occupation certificate. Since, the date of possession was not specifed, and the Autharity felt that tlure is no cause of action for tlu complainant to present tlrc complaint and dismissed tlrc complaint. Otlur tlun annexing tlu said oriler of MahaRERA tl,e Applicant / Plaintifflus not mentioned in tlu Plaint thnt tlv complaint for not being put in possession of tlu Suit flat was dismissed. Inspite of the mmplaintluoingbeenrejectcdby MahnRERAW ordcr datedL3th October,2017, tlu Applicant / Plaintiffhas belatedly fled the present Suit on 18th August, 2021- and talcen out the present Interim Application, wlrcreby tluy hatte sought for ad-interim relicf to be passed. The Ayplicant / Plaintiff were also aware of tlu Defendant No.3, tlu owner of tlu Suit property l*d not recogniztd any right of the Applicant / Plaintiff to tlu Suit fat way back on 16th October, 201-8 by corresponilence addressed W the Adaocate for Defendant No.3. L5. In oiew tlereof, I find tlwt tlure is no case made out fur grant of ad-interim relief against DefendantNos.3 to I apart from tlu fact thnt there is much delay in making such oppli*tion as tlu Applicant / Plaintiffs cnuse of action, if any, would haoe arisen much earlier. 16. Accordingly, ad-interim relief sought for is not granted." 5. Thus, from the above orders passed in two separate matters by the Hon'ble Bombay High Court, it is clear that the appointment of the new Promoter / Developer is allowed and the Allottees of the erstwhile (Old) Promoter / Developer cannot claim any ad-interim reliefs against either the new Promoter / Developer or the said Trust with whom they have no privy to seek protection of their alteged right to the allotted flats. It is also observed that the new Promoter / Developer has not submitted consents of the Allottees of the erstwhile (old) Promoter / Developer. The new Promoter / Developer and the said Trust are relying on the order of the Hon'ble Bombay High Court wherein Page4ofT \fuV the question of the earlier Alloftees has been dealt with. Since this change in Promoter is taking place as per the directions of the Honlble Bombay High Court and that the issue of Allottees of the erstwhile (old) Promoter / Developer has also been dealt with this Authority waives the need for consents to be obtained for change of name of Promoter as per section 15 of the said Act. In this context the relevant portion of the Hon'ble Bombay High Court order dated 73.U.n22 for ease of reference: "L1. Hauing ansidereil tlu submissions, I am of the oiew thnt no ad-inteim relief can be granted against the Defendtnt Nos.3 fo I as *ught fur by the Applicant / Plaintiffin oiew of the settlcd law laiil dawn by this Court in Vaidchi Akash Housing Pot. Ltd. (Supra).This Court has in the said decision held thnt there is no priaity of conbact between Applicant purcha*r and thc rcw ilcoeloper or owner of the Suit property when the agreement was entereil into by tlu Applicant purchtser urith the erstwhile ileaeloper. It was held in the fucts of that case tlut srycific perfonnance cannot be claimed and / or granted either against the Society as owner or Rustomiee as tlu tuw Detseloper of the Suit property. The rerudy of the purchnxr woulilbe to claim damages from the Vaidehi, thc erstwhilc ileoelaryr uniler their agreement." 6 Further, it is also observed that the said Trust has submitted an undertaking dated 29.10.2021. along with the application wherein it categoric ally stated @para No.5 therein that all the claims that may arise from any person/s or any legal entity shall be settled by the said Trust and that the new Promoter / Developer shall not be liable in any manner to such claims. It is also pertinent to note that the Advocate for the said Trust during the hearing held on 19.01.2022 before this Authority has submitted that the earlier buyers were investors and cannot claim privity of contract and also pointed out that the erstwhile (old) Developer / Promoter through an affidavit before the Hon'ble Bombay High Court has committed to carry the liabilities of the erstwhile (old) Developer / Promoter's Allottees which were put in place by him. In view of the undertaking submitted by the said Trust and the submission made by the said Trust this Authority directs the said Trust shall be held liable to take on all the responsibility, if any in the future arising out of the liabilities created by the erstwhile (old) Promoter / Developer of the said Project. ")},- \- Page 5 of 7 7 The said Trust being the co-Promoter declares / undertakes that the details furnished are true and correcfi that any changes would be immediately informed; that there is no pending case before any Court/NCLT/any authorized body regardingtransfer of the Promoter's rights and liabilities inthe Project, that there is no bar to transfer the rights and liabilities to a third party from any financial institrition or financiers who have a charge on the Projec! and that there is no prohibitory order passed by any Court of law against transfer of the existing Project in favour of third party. 8. Thus, the change in name of the Promoter has been carried out on the MahaRERA Project registration webpage with regard to the said Project. However, the correction application with regard to the change in the date of possession i.e. completion date of the Project to be 37.04.2023 and the change in FSI from 3588 sq. mtrs. to3624 sq. mtrs. is still pending before the MahaRERA. 9 The new Promoter/Developer has submitted declaration in Form - B along with the co-Promoter i.e. the said Trust. Further, the said Trust is also aware and consents the changes proposed by the new Promoter f Developer inthe FSI from 3588 sq. mtrs. to 3624 sq. mtrs. In view thereof, the change in FSI as may be approved by the Ptanning Authority shall be made in the details of the said Project on the MahaRERA Project registration webpage. 10. With regard to the issue of the extension sought by the new Promoter/Developer section 7 (3) ofthe said Act needs to be examined. The relevant extract of section 7 (3) is reproduced hereinbelow: '7 (3) Tlu Authority may, instead of reaoking tlu registration under sub-section (1), permit it to remain in force subject to such furtlur terms and conditions as it thinks fit to impose in tlu interest of tlu allottees, and any such terms and conditions so imposed shall be binding upon tlu promoter." 11,. On the plain reading of section 7(3) of the said Act, it is clear that instead of revoking the registration this Authority can impose certain terms and conditions as it thinks fit to let the registration remain in force. In view thereof, it is observed Page 5 of 7 ,$- N,$- that since the co-Promoter i.e. the said Trust have granted unto the new Promoter/Developer absolute rights to develop the said Project and that the co- Promoter has undertaken that all the claims that may arise from any person/s or any legal entity shall be settled by them, this Authority directs the grant of extension of the said Project up to 30.04.2023. FINAL ORDER Thus, H. RISHABRAJ DEVELOPEfTS are permitted as the new Promoter for the said Project and the said Trust shall be held liable to take on all the responsibitity arising out of the liabilities created by the erstwhile (old) Promoter f Developer of the said Project. Needless to say, that H. RISHABRAJ DEVELOPERS shall be required to independently comply with all the pending obligations under the provisions of the said Act or the rules and regulations made thereunder. Further, H. RISHABRAJ DEVELOPERS are allowed to make changes in FSI as may be approved by the Planning Authority. and are also granted an extension of the said Project up to 30.04.2023 to complete the balance conskuction work and handover possession to the Allottees of the said Project. H. RISHABRAJ DEVELOPERS is also directed to submit PERT CPM charts about the milestones to be achieved with respect to the completion of the said Project in a time bound manner and also submit quarterly progress reports of achievements of such milestones and/ or delay rt any, to MahaRERA, the said Trust, the Allottees and the Association of Allottees of the said Project. (h D)- Mehta) Chairperson, MahaRERA Page 7 of 7